UNIT 2: FIRST HEARINGS

Question 1

Indictable-only offences

Answer 1

• First appearance at magistrates’ court, but they immediately send it to the Crown Court under s.51 CDA 1998

Question 2

Either-way offences

Answer 2

• Either mag’s (FIRST) or crown (if non-guilty plea – maybe)
• First appearance mags, if D indicates a non guilty plea, COURT will decide whether to keep it or send it to the Crown Court for trial if it is too serious for them
• D’s choice: If magistrates keep the case, D has a right to elect trial by a judge and jury in the Crown Court or consent to summary trial

Question 3

Low value shop theft

Answer 3

is a summary offence
* Offence under s.1 Theft Act 1968 where the stolen goods value does not exceed £200 (aggregate value if there are multiple allegations, so the cumulative value is considered)
o If aggregate value exceeds £200, it is an either-way offence
* Summary-only offence unless an adult defendant enters a plea of not guilty when they can still elect trial in the Crown Court
o If D pleads guilty, cannot be committed to the Crown Court for sentence
* Maximum 6 months’ custody when sentenced at magistrates’ court

Question 4

Criminal damage

Answer 4

• Either-way offence
• BUT if the value of the property damaged is less than £5,000 it will also be treated as a summary offence unless damage was caused by fire or to a memorial  value of the property damaged is not material and any such offence will always be treated as an either-way offence.
• ‘memorial’ drafted widely (s 50 of the Police, Crime, Sentencing and Courts Act 2022) to include any damage to:
• a building or other structure or any other thing erected or installed on land, or
• a garden or any other thing planted or grown on land

where they have a commemorative purpose in relation to any living or deceased person or animal.

Question 5

Applying for a representation order?

Answer 5

o NB everyone who attends at the police station is entitled to free legal advice, regardless of their financial situation. The following applies to legal representation at COURT.
o A defendant who wishes to apply for criminal legal aid in the magistrates’ court must satisfy two tests:
1. the interests of justice test – D must show that it is in the interests of justice that they receive public funding to cover the cost of their legal representation; and
2. the means test – D must demonstrate that their finances are such that they are unable to pay for the cost of their legal representation.
1. capital will not be taken into account when determining this (e.g., inheritance, property, etc).
o D must submit an online application form (Form CRM14) and either:
 satisfy the means test, or
 submit a financial statement (Form CRM15)

Question 6

Public funding - work done at police station

Answer 6

• Claimed as fixed fee
• One fixed payment for every police station case - doesn’t matter how many attendances and how long the adviser was there
  
  • NB special provision for more serious cases or very time-consuming
• Non-solicitors - can attend and charge as long as they are accredited or probationary police station representatives
• Duty solicitor scheme - name on rota and can be called to attend if ‘on duty’ and person arrested does not have a solicitor

Question 7

Mags v Crown - legal aid contribution?

Answer 7

• Magistrates Court: if D qualifies for legal aid, no requirement to contribute to their defence costs
• Crown Court: legal aid may be available but subject to the defendant paying a contribution towards their legal aid costs

Question 8

Failing means test but other evidence?

Answer 8

• The following defendants will receive criminal legal aid automatically without needing to satisfy the means test:
  1. applicants who receive income support, income-based jobseeker’s allowance, guaranteed state pension credit, income-based employment and support allowance or universal credit; and
  2. applicants who are under 18.
• If means test does not apply, must complete Form CRM15 & provide the necessary evidence to substantiate financial details inserted in the form

Question 9

Representation order - either way matter

Answer 9

• covers all work by solicitor on proceedings in MC or CC
• may extend to an appeal to the CC against conviction/sentence
• if D failed MC means test and case goes to CC, funding will not start until day after sending hearing and will only cover work done in CC and only if D passes CC means test

Question 10

Crown Court evidence

Answer 10

o Only admissible evidence will be put to the jury; disputed evidence will not be
 All evidence goes to the magistrates in MC, so potential biases even if they decide some evidence is inadmissible (though note that now MCs seek to determine this at pre-trial hearing so not a major issue)

Question 10

Hardship grounds

Answer 10

If D fails interests of justice test can appeal the refusal of legal aid on this basis by adding further details to their original Form CRM14 and resubmitting it, or by requesting an appeal, There is no right of appeal against the refusal of legal aid as a result of a failure to satisfy the means test (although the defendant may ask
that their application be reviewed on the grounds of hardship).

Question 10

Mags court - speed

Answer 10

 important where D has other obligations outside of the case; or D has been denied bail and is remanded in custody until trial
o Less stressful on defendants because the procedure is less formal and intimidating
 important where D has no previous convictions

Question 10

Defence statement

Answer 10

o A defendant pleading not guilty in CC must serve a defence statement to the court and prosecution, providing more information about the defence case
o MC has no obligation (it is optional)

Question 11

If client pleads not guilty

Answer 11

Solicitor can:
o cross-examine prosecution witnesses (be careful not to assert any positive defence that they know to be false)
o put the prosecution to proof of their case
o make a submission of no case to answer at the end of the prosecution case / ask the magistrates to dismiss the case (relevant if CPS failed to discharge their evidential burden to show that D had a case to answer)

Solicitor is unable to:
o continue acting if the submission of no case to answer was unsuccessful and D then insists on entering the witness box to give evidence which the solicitor knows to be false [such a submission could be made if the prosecution failed to discharge their evidential burden to show that the defendant had a case to answer]
 Solicitor would need to withdraw from the case due to conflict with duty not to mislead the court
 Solicitor still owed duty of confidentiality to client so cannot reveal the reason for withdrawal

Question 12

Indicating a guilty plea

Answer 12

• If pleading guilty, D is treated as having been tried summarily and convicted
• First, CPS representative will outline the facts of the case to the magistrates and tell them about previous convictions
• Next, D’s solicitor may give a plea in mitigation on D’s behalf
• Magistrates will decide if their sentencing powers are sufficient, or if it should be referred to CC, considering the guideline sentence in the Magistrates’ Court Sentencing Guidelines and any aggravating or mitigating factors
  o MC max: 6 months’ imprisonment for a defendant who is convicted of one either-way offence, up to 12 months’ imprisonment for two or more either-way offences
• If sufficient sentencing power, MC will sentence immediately or adjourn for a pre-sentence report before sentencing / adjourn if NEWTON HEARING necessary (and consider if D released on bail or remanded in custody until sentencing hearing)
• If insufficient sentencing power, commit D to CC for sentencing (if the offence is so serious that CC should have the power to deal with D as if they had been convicted at a CC trial)
  o D will either be remanded in custody or on bail
   Usually, if D pleads guilty at the plea before venue hearing and is committed to CC for sentencing, the magistrates will not alter the position as regard bail or custody – so the position before the hearing will likely be maintained i.e. in custody or on bail (R v Rafferty)

Question 13

Pleading not guilty

Answer 13

• If D pleads not guilty to an either-way offence in the following circumstances, the court shall send the defendant to the Crown Court for trial (CDA 1998, s.50A(3)(b)):
  1. the defendant is sent to the Crown Court for trial for a related offence;
  2. the defendant is charged jointly with another adult defendant who is sent to the Crown Court for trial for a related offence;
  3. the defendant is charged jointly, or charged with a related either-way offence, with a youth defendant who is sent to the Crown Court for trial.
• In all other cases where a not guilty plea is indicated (or where D refuses to enter a plea), the court must determine whether the offence appears more suitable for summary trial or trial on indictment (decision as to allocation)

Question 14

Summary trial - adequacy for D

Answer 14

1. the case appears suitable for summary trial;
2. they can consent to be tried summarily or choose to be tried on indictment; and
3. if they consent to be tried summarily and are convicted, they may be committed to the Crown Court for sentence (Magistrates’ Courts Act 1980, ss 20(1) and (2)).
4. The prosecution will inform the court of the facts and the defendant’s previous convictions (if any) (s 19(2)(a)).
5. The magistrates shall consider:
6. any representations made by the prosecution or defence, as to whether summary trial or trial on indictment would be more suitable (s 19(2)(b)); and
7. sentencing power - whether the sentence which they would have power to impose for the offence would be adequate (s 19(3)(a)); and
8. the Allocation Guideline issued by the Sentencing Council
    generally, either-way offences should be tried summarily unless it is likely that the MC’s sentencing power will be insufficient
    consider all aspects of the case by prosecution and defence
9. In considering the adequacy of its sentencing powers when dealing with two or more offences, the court should consider its potential sentencing powers in the light of the maximum aggregate sentence the magistrates could impose for all the offences taken together, if the charges could be joined in the same indictment or arise out of the same or connected circumstances (s 19(4)).
10. If the court decides that the offence appears more suitable for trial on indictment, the defendant is sent forthwith to the Crown Court (Magistrates’ Courts Act 1980, s 21).
11. If the court decides that the case is more suitable for summary trial, it must explain to the defendant that:
12. the case appears suitable for summary trial;
13. they can consent to be tried summarily or choose to be tried on indictment; and
14. if they consent to be tried summarily and are convicted, they may be committed to the Crown Court for sentence (Magistrates’ Courts Act 1980, ss 20(1) and (2)).
15. At this stage, the defendant may request an indication of sentence, ie an indication of whether a custodial or non-custodial sentence would be more likely if they were to be tried summarily and plead guilty. It should be no more specific than that. Where a case is dealt give a custodial sentence, the court must have given an indication of that on request. Further, an indication of sentence shall not be binding on any court (whether a magistrates’ court or not), and no sentence may be challenged or be the subject of appeal in any court on the ground that it is not consistent with an indication of sentence.
16. The court may, but need not, give an indication of sentence. It would appear that the court cannot give an indication of sentence unless the defendant requests one. If the court gives an indication of sentence, the court should ask the defendant whether they want to reconsider the earlier indication of plea that was given.
17. Change to guilty: If the defendant indicates that they want to plead guilty, they are treated as if they had been tried summarily and pleaded guilty. In these circumstances, an indication of a non-custodial sentence will generally prevent a court from imposing a custodial sentence for the offence.
18. No change, i.e. not guilty: If the defendant does not change their plea to guilty, the indication of sentence shall not be binding on any court, and in these circumstances no sentence may be challenged or be the subject of appeal in any court because it is not consistent with an indication of sentence. Equally, an indication of a custodial sentence does not prevent the court from imposing a non-custodial sentence.
19. Choice: Where the court does not give an indication of sentence, whether requested to do so or not, or the defendant does not indicate that they want to reconsider the indication of plea or does not indicate that they would plead guilty, the court must ask the defendant whether they consent to summary trial or wish to be tried on indictment (Magistrates’Courts Act 1980, s 20(8) and (9)).
20. If the defendant consents to summary trial, the court shall proceed to summary trial
21. Prosecution request: The prosecution (not the defence) are allowed to make an application, before summary trial begins and before any other application or issue in relation to the summary trial is dealt with, for an either-way offence allocated for summary trial to be sent to the Crown Court for trial. The court may grant the application only if it is satisfied that the MC sentencing power would be inadequate. Where there is a successful application by the prosecution for the offence to be tried on indictment, the case will be sent forthwith to the Crown Court for trial.
22. If the defendant does not consent to summary trial, they must be sent forthwith to the Crown Court for trial (Magistrates’ Courts Act 1980, s 20(9)(b)).Note: where the court is dealing with two or more defendants charged with the same offence, if one of the defendants elects trial in the Crown Court, all of the defendants will be sent to the Crown Court for their joint trial regardless of the other defendant(s)’s decision on venue (CrimPR, r 9.2(6)(a)).

Question 15

Different pleas before venue hearing

Answer 15

• Where D is charged with more than one either-way offence, they may indicate different pleas for each charge
• MC will proceed with the allocation hearing in respect of the offence to which D has indicated a not guilty plea
• If MC accept jurisdiction (and D does not elect for CC), MC will either sentence immediately for the offences pleaded guilty to, or adjourn until the end of the trial of the offence to which they have entered a not guilty plea
• If MC decline jurisdiction (or D elects trial at CC), MC sends the offence which D entered a not guilty plea for to CC for trial – MC would then have the choice on how to approach the other offence which D pleaded guilty to (either sentence immediately or commit to CC for sentence)

Question 16

When must either-way offences be sent straight to the Crown Court in accordance with s 50A of the CDA 1998

Answer 16

1. Where notice, in serious or complex fraud cases, has been given by the DPP under s 51B of the 1998 Act. Notice is given to the court that the evidence is sufficient to put a person on trial for the offence, and the evidence reveals a case of fraud of such seriousness or complexity that the management of the case should without delay be taken over by the Crown Court.
2. Where a notice, in certain cases involving children, has been served under s 51C of the CDA 1998. Notice is given to the court that the evidence is sufficient to put a person on trial for the offence, a child will be called as a witness and that for the purpose of avoiding any prejudice to the welfare of the child, the case should be taken over and proceed without delay by the Crown Court. The offences to which this procedure applies include:
   o assault
   o threat of injury to a person
   o child cruelty
   o certain sexual offences
   o kidnapping
   o false imprisonment
   o child abduction.
3. Where there is an either-way offence related to an offence triable only on indictment, or one covered by a notice under s 51B or s 51C of the CDA 1998, in respect of which the same defendant is being sent to the Crown Court. Where a defendant is sent to the Crown Court for trial for an offence triable only on indictment, or for an offence in respect of which notice has been given under ss 51B or 51C of the CDA 1998, the court must at the same time send the defendant for trial for any either-way offence which appears to the court to be related (s 50A(3)(a)). However, where the defendant appears on the related either-way charge on a subsequent occasion, the court may send them for trial.
4. Where there is an either-way offence related to an offence triable only on indictment, or one covered by a notice under s 51B or s 51C of the CDA 1998, in respect of which another defendant is being sent to the Crown Court (s 50A(3)(a)).

• Serious or Complex Fraud: If the DPP gives notice under s 51B indicating sufficient evidence for trial, and the case is deemed serious or complex.
• Cases Involving Children: If notice is served under s 51C for cases involving children, indicating sufficient evidence and the need to protect the child’s welfare. This includes offences like assault, child cruelty, and certain sexual offences.
• Related Offences: If a defendant is sent to the Crown Court for an indictable offence or one under ss 51B or 51C, any related either-way offence must also be sent at that time.
• Another Defendant’s Related Offence: If another defendant is sent to the Crown Court for a related

Question 17

Remands before conviction

Answer 17

• Basic rule - D may not be remanded in custody for more than 8 clear days at a time.
• Exceptions - if D’s case is still in the magistrate’s court, where there are successive remands in custody, D needs to be brought before the court on every fourth remand, provided they have consented to this and have legal representation.
• Court-based exception - the court may remand a D in custody for up to 28 days if:
  o (a) it has previously remanded them in custody for the same offence; and
  o (b) they are before the court; and
  o (c) it can set a date to remand them to on which it expects the next stage of the proceedings to take place.

Question 18

• Custody time limits (CrimPR, r.14.18 and r14.19)

Answer 18

o Maximum period of remand in custody (custody time limit) for magistrate’s court is:
 70 days before trial - either-way offence
 56 days before trial - summary-only offence
 NB However, if the case involves an either-way offence and the allocation hearing takes place within 56 days, the custody time limit for the either-way offence is reduced to 56 days.
o Prosecution can apply to the court to extend the custody time limit - will need to show on the balance of probabilities that: (Prosecution of Offences Act 1985, s22)
1. there is good and sufficient cause to do this, and
2. that it has acted with due diligence and expedition.
 Application can be made orally or in writing, though a written notice of intention must be served on the court and D at least 2 days before the hearing in the magistrates’ court.
o Once the time limit has expired, D must be released on bail until his trial.
o If prosecution is granted an application to extend the time limit by the Magistrates’ Court, D has a right of appeal to the Crown Court.
o If prosecution is refused an application to extend the time limit, the prosecution also have a right to appeal to the Crown Court against this refusal.

Question 19

Keeping D in custody

Answer 19

• allows a magistrate’s court to remand D to police custody for up to three days if this is necessary for the purposes of making enquiries in relation to offences other than the offence for which D has been charged.
  o CPS will likely apply for this where D has been arrested and charged for one offence, but the police suspect their involvement in other matters about which they wish to interview them.
  o If this remand applies, D must be brought back before the magistrates as soon as the need to make enquiries has ceased.
  o Whilst at the police station, D is entitled to the same rights as if they had been arrested and detained prior to charge (e.g., right to free legal advice)

Question 20

Remands on bail?

Answer 20

D on bail may be remanded prior to conviction for any period of time, subject to D’s consent.

Question 21

Remands after case committed or sent to the Crown Court

Answer 21

D committed to the Crown Court for sentence, or whose case is sent to the Crown Court for trial, may be remanded in custody or on bail until the case comes before the Crown Court.

Question 22

Remands after conviction

Answer 22

• D may be remanded in custody before sentence (usually to prepare pre-sentence reports) for successive period of a maximum of 3 weeks.
• If D is remanded on bail, this may be for successive periods of not more than 4 weeks.

Question 23

Presumption of granting bail?

Answer 23

1. All Ds prior to conviction;
2. Ds who have been convicted if their case has been adjourned for the court to obtain reports before sentencing;
3. Ds who are appearing before the court for breach of a community sentence.
   * The presumption in favour of bail does not apply to Ds:
4. who have been committed to the Crown Court for sentence; or
5. who are appealing against conviction or sentence.
   * ALSO NB s25 CJPOA 1994 - if D is charged with one of the specified offences or has previously been convicted of any of them, a court may grant bail to D only if exceptional circumstances exist. These offences are:
   o murder
   o attempted murder
   o manslaughter
   o rape
   o attempted rape
   o some other serious sexual offences

Question 24

D charged with murder wants to apply for bail?

Answer 24

o The magistrates’ court must transfer D to the Crown Court (in custody)
o Crown court then, within 48 hours, must make a decision as to whether to grant bail.
o s114(2) Coroners and Justice Act - bail may not be granted in these circumstances, unless the court is of the opinion that there is no significant risk of D committing, whilst on bail, an offence likely to cause physical or mental injury to another.

Question 25

Exceptions to the right of bail?

Answer 25

• No real prospect of custody:Conditions:
  1. D is aged 18 or above
  2. D has not been convicted of an offence in the proceedings (yet);
  3. it appears to the court that there is no real prospect that D will be sentenced to a custodial sentence in the proceedings
  MC will have no power to remand D in custody before dealing with his case

The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would:
1. (a) fail to surrender to custody, or
2. (b) commit an offence while on bail, or
3. (c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person

Question 26

further bail conditions - protected person, sufficient info, murder

Answer 26

2. The defendant need not be granted bail if the court is satisfied that the defendant should be kept in custody for their own protection or, if they are a child or young person, for their own welfare.
3. The defendant need not be granted bail where the court is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decisions required by this Part of this Schedule for want of time since the institution of the proceedings against them.
4. The defendant need not be granted bail if, having previously been released on bail in, or in connection with, the proceedings, the defendant has been arrested in pursuance of section 76ZA. If the defendant is charged with murder, the defendant may not be granted bail unless the court is of the opinion that there is no significant risk of the defendant committing, while on bail, an offence that would, or would be likely to, cause physical or mental injury to any person other than the defendant.

Question 27

THREE MAIN EXCEPTIONS to granting bail - all under of the substantial grounds of failing to surrender head

Answer 27

1. nature and seriousness of the offence + probable sentence
   
   • *custodial sentence
2. character, antecedents, associations and community ties of D
   
   • *previous convictions of the same or similar type
   • *previous convictions for offences whilst on bail
   • *witness known to D and fear that D may attempt to interfere
   • *lack of community ties = substantial grounds for believing that D will fail to surrender to custody
3. D’s record in respect of previous grants of bail in criminal proceedings
   
   • *previous convictions for absconding = substantial grounds for believing that D will fail to surrender
4. strength of evidence against D

Question 28

Summary only imprisonable - can ONLY refuse bail on grounds:

Answer 28

• failure to surrender
• commission of further offences
• fear of commission of offences likely to cause another person to suffer or fear physical or mental injury
• D’s own protection
• D serving custody
• fear of failure to surrender, commission of offences, interference with witnesses or obstruction of justice
• lack of sufficient information

Question 29

Non imprisonable - can ONLY refuse bail on grounds:

Answer 29

• D previously granted bail and failed to answer + court believes will happen again
• D’s own protection/welfare
• D serving custodial sentence for separate offence
• D granted bail previously and was arrested for failing to answer/breaking conditions + court believes will happen again or D will commit an offence or interfere w course of justice

Question 30

Conditional bail

Answer 30

• When a defence advocate is making an application for bail on behalf of their client, they will normally invite the magistrates to consider granting conditional bail to their client if the magistrates are not minded to grant bail on an unconditional basis.
• Court has the power to grant bail to D subject to D complying with one or more conditions that the court attaches to that bail.
• s3(6) Bail Act - such conditions must be necessary to:
  o (a) prevent D from absconding
  o (b) prevent D committing a further offence whilst on bail
  o (c) prevent D interfering with witnesses or obstructing the course of justice
  o (d) ensure that D makes himself available for the purpose of obtaining medical or other reports
  o (e) ensure that D keeps an appointment with his solicitor
  o (f) ensure D’s own protection, or in the case of a minor D, for his own welfare or in his own interests.

Question 31

Conditional bail - preventing absconding

Answer 31

Security

Surety (NOT solicitor or criminal record)

Reporting to police station

Residence specified address

Surrender of passport (serious cases, with assets outside UK)

Question 32

Conditional bail - prevention of committing offences on bail

Answer 32

Reporting to police stn

Residence

Curfew/e tagging

Non-communication - direct or indirect - with witnesses

Restriction on geographical areas

Question 33

Conditional bail - preventing witness communication

Answer 33

Non-communication, area restriction

Question 34

Substantial grounds for refusing bail

Answer 34

• fail to surrender to custody
• commit offence on bail
• interfere with witnesses/obstruct justice

Question 35

Electronic monitoring

Answer 35

can only be imposed to monitor compliance with another bail condition, such as a curfew or an exclusion zone.
EM can only be imposed if the court is satisfied that:
* without the electronic monitoring requirements, the person would not be granted bail, and
* the necessary arrangements for electronic monitoring are in place.

EM has a high threshold for imposition and may only be considered by the court once it is satisfied it would otherwise remand the person into custody.
Although EM is possible for juveniles who are aged 12 or over, the requirements are much stricter than for adults (see Bail Act 1976, s 3AAA)

Question 36

Procedure if CPS rejects bail application

Answer 36

1. CPS gives D’s solicitor information material to what the court must decide ASAP
   
   2. CPS will state its objection to bail + apply for D to be remanded in custody
   3. D’s solicitor makes application for bail, responding to CPS’s objections and suggesting conditions if appropriate
   4. Witnesses (e.g., prospective employer/someone who D can live with) may be heard from
   5. Court decides whether to grant bail + any conditions they consider necessary
   6. Decision will be recorded and given to D
   If refused/granted subject to conditions → reasons for refusal/conditions must be given to D alsoIf granted → reasons for granting must be given to CPS on request

Question 37

Further applications for bail

Answer 37

• At the first hearing after the hearing at which bail was refused, D’s solicitor is permitted to make a full application for bail using any argument as to fact or law, even if they used the same arguments in their first unsuccessful application
• If ^ refused, further bail application only allowed if D’s solicitor can raise a NEW LEGAL OR FACTUAL ARGUMENT

Question 38

Mags duty for bail

Answer 38

• If bail is refused, the magistrates are under a duty to consider the question of bail at any subsequent hearing if D is still in custody and the presumption in favour of bail still applies.
  o Practice note - this does not mean that D’s solicitor is permitted to make a full bail application at each subsequent hearing.

Question 39

Appeal against decisions on bail - by Defendant?

Answer 39

• can appeal to CROWN COURT against refusal of bail by MAGS w certificate of full argument- Procedure:
  
  1. Notice of application completed ASAP after decision and sent to CC and MC and CPS
     
     1. specifies decision D wants CC to make and offences D charged with
     2. gives reasons why CC should grant
     3. provides any further information or legal arguments raised
     4. sets out suggested conditions
  2. If CPS oppose, must notify the CPS and D of their reasons
  3. Unless the CC says otherwise, the appeal should be heard as soon as practicable and, regardless, no later than THE BUSINESS DAY AFTER which it was served
  4. If judge grants bail, a copy of the judge’s order will need to be sent to the prison or remand centre where D is being held so that D may be released from custody.

Question 40

Appeal against decisions on bail - by Prosecution

Answer 40

• can appeal to CC judge
  1. Oral notice by CPS at end of hearing during which the court granted bail + before D released from custody
  2. NOTICE must be confirmed in writing + served in D max. 2 hours after TELLING COURT DECISION TO APPEAL
  3. CC must hear appeal ASAP, and regardless max. 2 business days after appeal notice served

Question 41

What steps will court take if D fails to surrender?

Answer 41

1. MC will issue a warrant for D’s arrest
2. Warrant will be backed or not backed by bail
3. If not backed by bail, police must arrest D and keep them in police custody until they can be brought before the court

Question 42

What happens when D appears before the court after failing to surrender?

Answer 42

• CPS can choose to charge them with failing to surrender to custody
• If D has already made an appearance before the court and been granted bail by the court, the decision to commence proceedings agains them for failing to surrender will be made by the court rather than the CPS

Question 43

Two offences with which D can be charged for failing to surrender?

Answer 43

1. Absconding - failing without reasonable cause to surrender to custody
2. s6(2) - if D did have a reasonable cause for failing to surrender, they will still be guilty of an offence under s6(2) unless they surrendered to custody as soon as it was reasonably practicable for them to do so

Question 44

Consequences of failing to surrender?

Answer 44

• sentence immediately; or
• adjourn sentence until the conclusion of the proceedings

Other options:

• refuse bail in the substantive proceedings
• grant bail with stricter conditions
• make further grant of bail

Question 45

Breaching bail - is it a crim offence?

Answer 45

-

No - failure to comply with curfew, condition of residence, condition not to contact a witness 

YES - failure to comply with condition to attend next court hearing (absconding)

Question 46

What can the police do if D has breached bail? Time limit for bringing D to court after arrest?

Answer 46

Police officer can arrest a person who is on bail if they reasonably believe that the person:

1. is not likely to surrender to bail; or
2. has broken, or is likely to break, their bail conditions

24hr time limit

Question 47

What does MC decide re breach of bail condition?

Answer 47

• Whether to remand D in custody, or whether to grant bail with or without conditions pending the next substantive hearing in the caseTwo-stage test:
  1. was there a breach of the bail conditions previously imposed?
  2. if so, should D be remanded in custody or on bail pending the next hearing
• or more stringent bail conditions

witness statements by prosecution favoured over oral evidence